Doublethink – The Digital Economy Bill against the digital economy

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In 1938 Winston Churchill made a radio speech which was broadcast to America, describing what was happening as Nazi forces spread across Europe.

“The stations of uncensored expression are closing down; the lights are going out; but there is still time for those to whom freedom and parliamentary government mean something, to consult together.”

Perhaps if he’d been around today and au fait with the Internet he might have used the same phrase to describe what is going on in legislatures across Europe.

Tonight the UK Labour governement, together with the Conservative arty, forced through the controversial Digital Economy Bill. The Bill now gets a ‘third reading’ in the House of Lords, which means it is almost certain to become law. The government did a deal with the Conservative leadership, which got a number of provisions it didn’t like removed. In other words, it was, to use an old British phrase, a “stitch up.” [Update 9 April: The Digital Economy Bill has received Royal Assent and is now law].

The law means that ISPs will have to send letters to their subscribers who have been linked to copyright infringements and, after these warnings, suspend their accounts. Copyright holders will be able to apply for a court order to gain access to the names and addresses of serious infringers and take legal action. There are one or two sops – some restrictions won’t come into force for a year and the next Parliament will be able to study the most contentious aspects of the bill. These are largely meaningless as everything can change. Remember, there is a now a general election on and who knows what the next government will look like.

Despite opposition from the Liberal Democrats and a handful of Labour MPs, notably long time Internet savvy MP Tom Watson, the government won two crucial votes allowing it to control the content of the bill and its further progress.

It won by 189 votes to 47. These numbers give a false impression of the amount of debate this crucial Bill got. Barely 20 MPs actually debated the Bill, the rest just filled in to vote, told by their ‘whips’ which direction in which to trudge through the voting halls.

The government did remove the controversial Clause 18, which would have given it unprecedented powers to shut down web sites which it might deem to give access to copyrighted material. However, this was replaced it with an amendment to Clause 8 which lets the Secretary of State for business order a block on “a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright”. So, in other words, more or less the same thing as the old Clause 18, just via a judge.

Yes, that means the UK government could decide to block Wikileaks, which carries copyrighted work.

As one MP pointed out, the words “likely to be used” might infer that a site could be blocked if it looked like it might intend to infringe copyright, rather than actually doing so. Ominous huh.

The effect on startups

So, in other words if you were planning on creating a new startup to offer web locker services like Dropbox, you might not want to do that in the UK. That this should happen in what is normally considered to be a sophisticated economy beggars belief.

The law will of course have many “unintended consequences”, as Watson put it in his speech against the bill.

In trying to support the old music industry models and tackle illegal file-sharing, the #DEBill, as it’s known on Twitter, is poised to produce a new culture. That of legal letters from music industry bodies to ISPs, bewildered householders and, no doubt, any number of Internet companies.

In the past the lawyers had to go after the infringers, with actual proof. Now, the holder of the Internet account (Mum, Dad, Grandparents and the small startup that can’t afford the legal fees) will be held to account for what happens over their connection.

Parents who have no idea their teenage children, neighbours, or even someone parked outside their house, has been slurping their WiFi and downloading the latest movies and music, will now be up in court.

During the debate there was a farcical moment when Stephen Timms, the Labour government’s Finance Minister said, with a throw away line, that people could simply password protect their WiFi. Of course, this shows a staggering lack of knowledge of how easy these are to break. More importantly the Bill does not even afford any guaranteed legal protection for people who try to put security measures in place.

A new way for lawyers to create another ambulance chasing industry? How’s that for unintended consequences.

So let’s just rack this up.

• Media regulator Ofcom, say our sources, doesn’t want to enforce this new law and has no idea how it will.

• Twitter is awash with people saying they are going encrypted and will now use a Tor or anonymity network to go online.

• The wave of civil disobedience started within minutes of the Bill being passed. e.g. See Whatdebill.org

• Spotify, which is providing a free music alternative to file sharing, is actually owned by the record labels which wrote much of this legislation. So on the one hand it bleets about piracy, while on the other forgets to mention it’s giving away music with ads. How many MPs know this?

• And even while the UK is one of the best places in Europe to start an Internet company, if one of your employees goes rogue you’ll be in the frame for it.

All this while more enlightened governments across the planet are starting to talk about Internet access as a human right. How does that sit with withdrawing it without any presumption of innocence?

Consequences

A further impact will be on the UK’s technology innovators. How would you like to create a startup which involves user generated content that might infringe this new law in some way? Your legal bills might end up being bigger than your actual Internet access bill.

Over 20,000 people have written to their MP arguing that the Digital Economy Bill was so complex it needed more time for scrutiny. People donated to the Open Rights Group for newspaper ads to be taken out. Apparently none of this counted as much as lobbyists from the British Phonographic Industry writing draft after draft of the bill for the government.

But perhaps the greatest unintended consequence will end up being for the music industry itself.

In April last year Sweden’s Internet traffic took a dramatic 30 per cent dip as the country’s new anti-file sharing law came into effect.

Prior to this, Sweden, the home of the Pirate Bay, had been a hotbed of illegal trade in movies and music.

But several months later traffic levels started to surpass the old levels. Consultancy firm Mediavision found that the accessing of illegally shared movies, TV shows and music simply recovered. But there was with one crucial difference. Much of the internet traffic was now encrypted.

In other words, the very laws the entertainment industries had lobbied politicians to pass in order to protect their industry, had created the even bigger headache of untraceable file sharing.

For them, this will be the legacy of the Digital Economy Bill.

But a worse legacy will be the wrongly accused (without the presumption of innocence) and the technology innovators discouraged from innovating, and thus actually creating the new digital economy the Government continually lauds with words but not, it turns out, with actions.